ABC Chair Keynote Address to the New South Wales Council for Civil Liberties

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Thank you for the invitation to be here tonight. I am pleased to have the opportunity to share my thoughts with you about the troubling times facing Australian media with the increasing restrictions around press freedom and the public’s right to know.

As a consequence of the creeping encroachment on the ability to report in the public interest, the right to be properly informed in order to fully engage and participate in our civil society is becoming increasingly difficult.

But let me begin by looking overseas. In early 2017 the Washington Post famously and somewhat controversially added a phrase to its masthead – the new tagline was democracy dies in darkness.

This tagline has an interesting history.

The Washington Post had been a frequent target of President Trump’s attacks against ‘the fake news media’. But the widespread assumption that there was an association between this and the new slogan was incorrect.

The genesis for the line can be found in a ruling by legendary civil rights judge Damon Keith that the Nixon government couldn’t engage in warrantless wiretapping.

In the wake of the September 11 attacks the Washington Post adapted the judge’s words as its tagline and a call to action.

At that time the American Civil Liberties Union (ACLU) took the United States government to court for attempting to hold court proceedings about the deportation of non-citizens in camera.

The court of appeals decision was a win for the ACLU with the court declaring: “the only safeguard on this extraordinary governmental power is the public, deputising the press as the guardians of their liberty. …the First Amendment, through a free press, protects the people’s right to know that their government acts fairly, lawfully, and accurately… democracy dies behind closed doors.”

Of course, Australia does not have a Bill of Rights or a protected freedom of the press as articulated in the first amendment to the U.S. Constitution.

In Australia, our freedom to commmunicate is implied through judicial decisions and convention. We have always supposed we have a free press.

That belief has been shaken to the core in recent times.

I was invited by the council to speak at tonight’s dinner – somewhat foresightedly may I suggest – the invitation was made prior to the events of early June.

This was when the Australian Federal Police came through the doors of the ABC and the home of News Corp journalist Annika Smethurst, to, as they put it, execute a search warrant.

Those actions have galvanised the media. As I have said on a number of occasions, it was a remarkable achievement by the AFP to bring the ABC and News Corp together on a unity ticket.

Who would have thought it possible?

Every other major media organisation in Australia has joined with the ABC and News Corp in vociferous opposition to those events.

The Right to Know Media Coalition is working extremely hard to convince the government that immediate law reform is vital to an independent and effective media.

To date two parliamentary inquiries have been initiated as a result of the raids, however we need to keep the momentum for change going.

There’s no doubt in my mind that these recent events have tarnished Australia’s standing on the world stage.

The AFP actions have not gone unnoticed overseas. In the days following the raids the New York Times decreed that Australia may well be the world’s most secretive democracy.

“No other developed democracy holds as tight to its secrets,” wrote the times. “The raids are just the latest example of how far the country’s conservative government will go to scare officials and reporters into submission.”

I thought Johan Lidberg, an associate professor of journalism at Melbourne’s Monash University, who also works with the united nations on global press freedom. Summed up the situation well. “You’ve got a mature liberal democracy that pursues and hunts down whistle-blowers and tries to kill the messenger.”

At the inaugural Defend Media Freedom Conference in the UK earlier this year, human rights lawyer Amal Clooney said:“what happens in a country like Australia, or the U.K. or the U.S. will be looked at by every other leader in the world and potentially used as an excuse to clamp down even further on journalists.”

Some leaders don’t need much encouragement to do this. U.S. President Donald Trump has declared journalists “the enemy of the people”.

According to some commentators political inaction on media law reform is not really surprising. Governments are an extension of the public mindset and many commentators say this issue isn’t a barbeque stopper for most people.

I disagree with that line of thought. I believe there is a much bigger feeling of disquiet among many Australians about the stifling of the media and the threats against whistle-blowers.

Many Australians were deeply shocked and disturbed at the AFP raid on the ABC.

The ABC’s supporters, viewers and listeners never should be underestimated. They understand that we are not seeking for anyone to be above the law but that no one in a democracy should be above scrutiny.

It could be argued that the media itself hasn’t blown the whistle loudly enough on what has clearly been opportunistic legal over-reach. Well maybe – but I think it’s fair to say that collectively our thinking has changed.

At the ABC we will shortly start to put details of the stories on our website that the public would never have known about, without a whistle-blower entrusting us with insider knowledge followed by a careful investigation by our journalists.

Journalists always have been keepers of secrets. We need to reassure the public about that. We can be trusted. We don’t always report on everything that comes before us and often because some matters are in the interests of national security.

We are not the enemy of the people as President Trump trumpets. We are the guardians of the public’s right to know.

According to respected constitutional law expert professor George Williams, the federal parliament has enacted 75 separate pieces of counter-terrorism legislation since 2001, which is some kind of international record.

Much of this legislation has been done quietly…has the media been asleep at the wheel?

I don’t think so. I think that in the glare of ‘lawfare’ headlights we’ve been temporarily blinded by security and counter-terrorism rhetoric.

I am not disputing that many of those 75 Acts and amendments are necessary and important in protecting the public.

However, I think we have seen a growing culture of secrecy, and matters that should be public and that are in the public interest are being hidden behind a veil of confidentiality or national security.

Certainly, the stories that led to the media raids were in the public interest. The ABC’s Afghan Files story remains online for all to read. So clearly the story was no breach of information that would endanger national security.

However, the reporter on the story, Dan Oakes, is potentially facing prosecution for receiving stolen goods under the criminal code act. Hardly the stuff of the pentagon papers.

If Dan ends up being prosecuted there is potential of a penalty of up to 10 years imprisonment. The AFP also wanted to fingerprint him.

It’s telling that the Afghan Files story was published in 2017, and as I said, remains available to anyone across the world to read. The story has been online for two years prior to the raid.

Similarly, the raid on Annika Smethurst’s home happened 401 days after her story was published in the Sunday News Corp newspapers.

I know the wheels of justice turn slowly, but that is something else. The delay and the timing of the raids on consecutive days remains a curiosity. As I have said publicly before, in my view they were clearly designed to intimidate.

We at the ABC and News Corp can take comfort (I hope) from the fact that the Attorney-General has said he would be seriously disinclined to prosecute any journalists for publishing this information.

So, I can only imagine that the real target of these raids was the whistle- blowers themselves.

When investigative reporter Adele Ferguson was recognised with a member of Australia award this year she paid tribute to the whistle-blowers who had contributed to her agenda-changing journalism.

She said: “words fail me over how brave these people are. And they empower others to speak up and it becomes a snowball effect.”

I’m loathe to generalise but I would argue that in the main, those who detect what they perceive is a wrong and are driven to speak up, act with courage because they do so knowing that they have absolutely nothing to gain and everything to lose…their reputation, their job, their livelihood, their family, as well as the potential of a prison sentence.

When they are persecuted or prosecuted for their actions, it can only have a detrimental impact on our democracy. And it has a knock-on effect.

As the ABC Director of News, Gaven Morris, told the parliamentary inquiry last month: “When we talk to a source we have always been able to say to them: ‘you can provide us with information and we will absolutely protect your identity and protect your wellbeing by doing that.’

“That is a crucial part of so many stories that have shaped policy in this country. We can’t say that now because we don’t know whether, in telling that story, the federal police are going to come and take those files away.”

What should be most frightening – most unacceptable – for us as a society are the things we may never know that is happening in our name or with our money if whistle-blowers no longer feel safe to come forward.

It’s not the raft of national security legislation that inhibits whistle-blowers and effective public interest journalism,

It’s the failure of the broader patchwork of laws around defamation, congested freedom of information processes and protection of whistle-blowers that’s given cover not for national security issues, but also to matters that may cause embarrassment or cost to those in power in government or business.

The recent royal commissions into banking and aged care would not have happened without whistle-blowers coming forward and the ability of a free media to report on these matters – which are clearly in the public interest.

We need public support and I will be encouraging ABC management and our media colleagues to do everything in their power to make Australians understand that the media’s ability to report corruption or maladministration is not about risking national security – it goes to the core of how our society operates – how our banks treat us, ensuring that people’s parents and grandparents are being cared for properly and knowing what governments and the bureaucracy do in our name.

There is a perfect storm brewing in Australia – a combination of complacency and compliancy, declining trust in democratic institutions, including the media, and a swirl of misinformation and disinformation, no longer just on the dark edges of the digital world, but in the tools we use to navigate through our everyday lives.

In April this year, reporters without borders ranked Australia 21 in the world, for press freedom. This is an increase from 19 in 2018. Following the events of June, no doubt our ranking will be even worse.

And I’d also note that our neighbour and five eyes partner, New Zealand is ranked seventh on that index.

We have taken the privilege of democracy for granted for too long. It is impossible to understate the importance of the public’s right to know and the media’s ability to inform. As the ABC’s Managing Director David Anderson said at the National Press Club recently: “media freedom is a proxy for public freedom”.

Access to information effectively underpins other human rights: it is hard to exercise rights if you don’t know what they are or how they are being abused or manipulated.

Knowledge truly is power.

The Washington Post tag line that I mentioned earlier democracy dies in darkness, traverses a challenging time for democracy.

So too did an even more pertinent tenet that arose at the time of nascent Western democracies – ‘eternal vigilance is the price of liberty’.

So, I commend you all and the New South Wales Council for Civil Liberties for your eternal vigilance.

I can assure you that the ABC will continue to be an independent and impartial servant of the truth – and of our democratic society.

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